We’ve written before about the perils of private ADA settlements. The yin and yang of ADA defense. Perilous settlements and temporary victories, and Starbucks and the ADA – more perilous settlements and temporary victories. explain how an ADA settlement can cost plenty and do nothing. The problem is simple. If you settle one case, but have not brought your business into ADA compliance, you are at risk for another case, and another, and another. That risk came home to roost for the defendant in Gniewkowski v. Party City Holdco, Inc., Case No. 2:16-cv-1686 (W.D. Penn.). In a decision issued on January 27 Judge Schwab, who has perhaps more experience in web access cases than any other federal judge thanks to the prolific filings of the Carlson Lynch firm, denied a motion for summary judgment based on the settlement of a web access case from Florida. Party City Holdco appears to be on its way to paying twice to settle the same website accessibility claim.

The problem is not new, but web accessibility litigation has increased the risk that money spent on settlement will be wasted. First, it is much easier for plaintiffs to find purported ADA violations. Traditional serial litigants at least had to get out of the office and drive around to find bad parking spaces and cracks in the asphalt. Web accessibility litigation can be generated without leaving the office using software tools that crawl the web looking for potential website defendants. There has been an explosion in the number of ADA cases filed, and ease of finding targets is one of the main reasons.

Even more important, web accessibility fixes are time consuming to implement, at least for complex web sites. A bad ADA parking place can be fixed in days or weeks. An inaccessible website is likely to take months or even years to fix. That long lead time makes the short term relief of a single settlement far less valuable than it might be in a physical accessibility case.

What should businesses do? The best solution is an accessible web site, but that takes time. The second best solution is to create a mootness defense with a settlement that is not confidential and does require compliance with WCAG 2.0 Success Level AA. Structuring a settlement so that the obligation to make the web site accessible is not confidential while any financial terms are confidential will at least give the business a reasonable argument that claims are moot based on the earlier settlement.

In the end though, the best way to create a defense to future litigation is through an agreed judgment that includes an injunction requiring ADA compliance. While that kind of judgment is personal to the individual plaintiff, under the ADA the only available relief is injunctive, and an injunction that requires website accessibility for one plaintiff inevitably protects every other possible plaintiff. A judgment creates the strongest argument for mootness as well as the strongest argument for a res judicata defense based on the the original plaintiff adequately representing the entire universe of plaintiffs. Entering into a public agreed judgment instead of a confidential settlement goes against every instinct of a defense lawyer, but in the wild new world of web accessibility litigation it is very likely the best way to avoid the peril of a meaningless settlement.